High Court
Case Details
WP(C) 2272/2007 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY JUDGMENT AND ORDER(ORAL)
Legal Reasoning
Heard Mr. Mr. M.K. Sarma, the learned counsel appearing for the petitioner. The Respondents are represented Mr. N. Borah, the learned C.G.C. 2. The petitioner was inducted as a constable-driver in the Sashastra Seema Bal (SSB) on 16.12.1993 and thereafter on reorganization of the SSB, he was pos ted at the Indo-Nepal border with the 12th Bn of the organisation. A charge mem o dated 01.09.2004 (Annexure-C) was issued against the constable-driver with the following 2 charges: (cid:28)ARTICLE OF CHARGE - I That the said No.9488481 Ct.(driver) Sankar Das of 12th Bn. while posted to M.T. section committed an offence of misconduct and neglect of duty in his c apacity as a member of the force under section 11(1) of CRPF Act, 1949 in that h e was absented from duty on 11/7/2004 while other M.T. staff were detailed for r epair and maintenance of vehicle by S.I. (MT). This act on the part of Ct.(Driv er) Sankar Das speaks his neglect of Govt. duty and irresponsible attitude towar ds the assigned duties of a disciplined member of the force. ARTICLE OF CHASRGE - II That on 11/07/2004 the said No.9488481 Ct.(driver) Sankar Das committed an offence of misconduct and neglect of duty in his capacity as a member of the force under section 11(1) of CRPF Act, 1949 in that he was found intoxicated con dition by the searching party in Goll Choke Market and thereafter he was sent to unit MT Room for medical examination where it was proved during medical examina tion that he had consumed alcohol as per medical report of the Unit Medical Offi cer. Thus Ct.(Driver) Sankar Das has committed grave offence in the capacity of a member of discipline force. (cid:29) Thereafter, an Enquiry Officer was appointed but although an exercise wa 3. s undertaken, the Enquiry Report was never furnished to the petitioner. But fol lowing the guilty finding recorded in the Enquiry, a 2nd show cause notice was i ssued on 21.09.2004(Annexure-F) and construing the petitioner’s reply to be only a mercy petition, the penalty of removal from service was inflicted, through th e impugned order dated 30.09.2004 (Annexure-H) by the Commandant of the 12th Bn ., SSB. 4. To challenge the legality of the impugned order, Mr. M.K. Sarma, learned counsel makes the following submission: The inquiry is vitiated since Presenting Officer was not appointed and 4.1 therefore the inquiry findings cannot be the basis for the impugned removal orde r. 4.2 The two charges against the delinquent relates to absenting from duty wi thout leave and being found in intoxicated condition on the day of absence. The counsel submits that assuming that 2 charges are established, they do not consti tute heinous offence under Section 10 of the Central Reserve Police Force Act, 1 949 (hereinafter referred to as the (cid:28)CRPF Act (cid:29)) and therefore Mr. Sarma contends that the Commanding Officer erred in treating the charges as grave offence and on that basis, the major penalty of removal from service was undeservingly infli cted. 4.3 The petitioner also projects that the past lapses of the delinquent cons table were taken into account without framing a formal charge for the earlier la pses and accordingly the punishment is contended to be disproportionate to the t wo proven charges. 5.1 Representing the respondents, Mr. N. Borah, the learned CGC refers to th e counter affidavit filed on 24.01.2008 to project that the delinquent committed various misconducts in the past for which he was punished prior to the present proceeding and since he was considered to be incorrigible, the punishment is con tended to be justified. 5.2 Referring to the admission of the delinquent before the Enquiry Officer on 06.09.2004 to question no.12, Mr. Borah argues that since the petitioner had pleaded guilty, the inquiry was a mere formality and the penalty could be infli cted on the basis of the guilty plea itself. 6. Here the 1st charge against the petitioner was that while all the Motor Transport staff of the battalion were detailed for repair and maintenance of veh icles, he absented himself form duty on 11.07.2004. Secondly, he was found in a n intoxicated condition by the search party, when he was found absent from the d uty area. While absence of a Presenting Officer in an Inquiry proceeding will r equire the Enquiry Officer himself to be the prosecutor and the judge and in suc h a situation, the Inquiry may be vitiated for breach of natural justice, what c annot be overlooked here is that the delinquent admitted his guilt before the En quiry Officer. Since the Supreme Court has held in Vice-Chairman, Kendriya Vidy alaya Sangathan Vs. Girdharilal Yadav reported in (2006) 6 SCC 325 that what i s admitted need not be proved, in a case where the delinquent has pleaded guilty , the vitiation of the inquiry on this count may not have much bearing on the ca se. 7. But when the delinquent admits to the twin charges that he was absent fr om duty and was intoxicated on 11.07.2004, this admission for the 2 specific cha rges cannot be taken as his admission for earlier misconducts. In fact, there w as no 3rd charge on past misconducts of the delinquent and therefore it was wron g for the Commanding Officer to determine the quantum of punishment by taking in to account the aggravating circumstances of past lapses. Being in a state of in toxication while on duty or being absent without leave are treated as less heino us offence under Section 10 of the CRPF Act and therefore, for the disciplinary authority to take into account the past lapses of the delinquent to describe the 2 lesser misconducts to be a grave offence and to decide on a severe penalty on this basis, in my view is arbitrary and unjust.
Decision
8. In the CRPF Act itself, several minor punishments are provided and for t he admission of the delinquent to the 2 charges, the disciplinary authority coul d have imposed a lesser penalty considering the relatively minor lapses of the p etitioner. In the context of the 2 charges which were admitted by the petitioner , I am of the considered opinion that the penalty of removal was disproportionat e and is not attracted. 9. For the foregoing reasons, without disturbing the guilty finding as the same is based on admission, the impugned penalty is quashed. Accordingly, the d isciplinary authority i.e. the Commandant of the 12th Bn., SSB is directed to re instate the petitioner subject to due assessment of his fitness to continue as a member of the Armed Forces. Since the penalty is held to be disproportionate a nd the petitioner is ordered to be reinstated, he shall be paid 25% of the back wages. After he is reinstated subject to fitness assessment, the disciplinary au thority if so advised, may impose a minor penalty for the 2 admitted charges. Bu t major penalty like dismissal, removal or termination from service should not b e ordered against the petitioner. 10. With the above order the case stands allowed without any order on cost.